Could Bush nominate Roberts for CJ?

I’m not looking for a “will he?” or “is it politically expedient for him to do so?” It’s really a very simple question:

If person A has been nominated for an Associate Justiceship, and the office of Chief Justice becomes vacant either right before the confirmaiton hearing or during it, can the President offer him the CJ spot without restarting the process?

(Yes, I presume the nominee could “withdraw” and then be re-nominated for the CJ spot, but would the whole process have to begin anew?)

Zev Steinhardt

Not sure what process you’re referring to in the Roberts case specifically. His Senate confirmation hearings have not begun, so all that would be required would be to have Bush withdraw the AJ nomination and re-submit his name for CJ.

I’m unaware if there’s precedent, but had the hearings started but no advise and consent vote been taken, Bush can still withdraw and re-nominate for the higher position. IMHO there would need to be new hearings because it’s a nomination for a different position (just as a sitting AJ has to be confirmed if elevated to the CJ slot) but there would be nothing preventing the Judiciary Committee from incorporating the testimony from the AJ hearings into the record for the CJ hearings.

Even if Roberts were rejected for the AJ slot, Bush could still nominate him for the CJ spot, or indeed re-nominate him for the AJ spot (although it would be pretty pointless for him to do so).

There is no constitutional requirement for the CJ to come from the standing court. Bush can do as he pleases. Really people, that’s one of the things we were voting on in the last election in case you missed it. :frowning:

Nobody was asking about appointing the CJ from the existing court. And I wasn’t aware we were voting on judicial nomination procedures during the last election. Was there a constitutional convention that I slept through?

To more answer the OP. What big process do they have to stop? The same people will question him for eithier position. It’s not like he has to submit his resume and referances again to a nameless committe and wait a couple of months whist they review him.

Correct, not on procedure. But who got on the court was one of the issues. Do you have a response to OP, BTW?

OK, the process. Bush announces tomarrow that he wants Roberts to be his choice for CJ. End of process.

I would imagine the process would go this way:

  1. President sends Sen. Arlen Specter a formal notice that he wants to withdraw Roberts nomination as an Associate Justice.
  2. Same time Specter gets a notice that Roberts is being nominated for Chief Justice.
  3. Specter says “OK, fine by me.”
  4. Hearings commence.

BobT, I bow to your detailed thought process. :slight_smile:

Step 3 is the hard part I think.

Really. At that point Specter will have to ask for a favor in return. He has to, its his nature.

Not really hard. If the president withdraws the nomination, the nomination is withdrawn. If he renominated Roberts to be CJ, then it is up to the Senate to confirm or reject him. The only issue would be whether they still want to hold the nomination as scheduled, or postpone it for further investigation, since the CJ is a more powerful position.

Update not only can Roberts be nominated for CJ, he just has.